Judicial Campaign Speech and Fundraising: Will Republican Party of Minnesota v. White Be a Catalyst for Reform?

Kara A. McCraw

Volume 1 - Spring 2003

Abstract

Introduction

Ohio citizens this past fall witnessed one of the most expensive campaigns in the history of judicial elections, with nearly ten million dollars spent by candidates and third parties in the quest for four seats. The barrage of advertising accompanying the heavy fundraising was so vitriolic that the Ohio State Bar Association created a commission to monitor the ads. The need for an impartial and independent judiciary in a legitimate political system was recognized long before the formation of the United States and embraced by the founders of this nation. In recent decades, events such as the ones in Ohio have created unease with judges, the bar, and the general citizenry. The more costly and competitive elections for judicial seats and the increased role of special interest groups in judicial campaigns have created the perception of impartiality in state judges. Announce clauses in state Codes of Judicial Conduct that limit the issues on which a campaigning judge may speak have long been employed by many states to address such concerns. However, such clauses may no longer be an available means for ensuring judicial impartiality in light of the recent decision by the United States Supreme Court in Republican Party of Minnesota v. White, which held that the announce clause in Minnesota's Judicial Canon violates the First Amendment. The elimination of announce clauses restricting judicial election speech raises significant concerns about the perception of judicial impartiality, especially in light of the current controversy surrounding judicial fundraising.

Part I of this Note reviews the background of the announce clause in Judicial Canons and lower court interpretations of their constitutionality. Part II analyzes the White decision regarding the role of the state judiciary and its connection to the elective selection method. Part III examines this decision in light of the current climate of judicial elections, provides an overview of the potential impacts of the ruling on judicial fundraising, and offers a brief survey of possible solutions for reconciling these concerns.

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